In the Bible
The Torah does not recognize the use of imprisonment as a punishment for criminal offenses (see
), but it explicitly mentions the placing of a person in detention as part of the procedure of making a legal determination in the case. Thus we read about the man found gathering wood on the Sabbath – a deed which was clearly considered a very serious offense – who was placed in detention pending completion of the clarification regarding the punishment that would be imposed upon him: "And they put him in custody, because it was not specified what should be done to him [what needed to be done with him]" (Lev. 15:34). The Aramaic translations of this verse interpret the meaning of the word "custody" as holding him in jail, i.e., detention. The Midrash explains that although it was clear that he was liable for the death penalty, it was still not clear by what means he was to be executed and therefore he was put in detention in the meantime (Sifri, Numbers, 114). Similarly, a man who blasphemed the name of God – another offense that was clearly extremely grave – was placed in detention until it was clarified what should be done with him: "And they put him in custody, that it might be declared unto them at the mouth of the Lord." (Lev. 24:12). Indeed, the punishment imposed on the offender in both cases, according to the command of God, was the death penalty (see
In Talmudic Literature
DETENTION OF THOSE LIABLE FOR CAPITAL PUNISHMENT
On the basis of these sources, tannaitic literature expanded the provisions regarding detention and it was determined that the person condemned to capital punishment should be put in detention: "To teach us that all of those condemned to capital punishment are to be placed in detention" (Sifri, Numbers, 114); However, these words do not indicate the stage at which the offender is placed in detention – whether after the completion of his trial, or when he is still only a suspect; and if at the stage in which he is only a suspect – what kind of evidence is sufficient for this.
DETENTION OF SUSPECTS IN ORDER TO ESTABLISH THE IDENTITY OF THE OFFENDER
In the opinion of Rabbi Judah (second century), detention was also utilized in cases in which the offender is located among a group of innocent people, and it is not known which of them is the murderer. His view diverged from the Sages' view, according to which in such a case all are exempt from detention, in his opinion – "they are all placed in jail" until it becomes apparent which of them is the murderer (Sanhedrin 9:3).
DETENTION OF THOSE CONDEMNED TO DEATH
A person sentenced to death was placed in detention until the sentence was carried out. The Mishna (San. 11:4) and the Tosefta (Zuckermandel edition, San. 11:7) state that the sentence of the stubborn and rebellious son, the rebellious elder, the inciter, the one who leads others astray, the false prophet and the perjured witness is not implemented immediately after sentencing but rather "he is brought up to the High Court in Jerusalem and is kept in custody until the festival and he is executed during the intermediate days of the festival." This is the position of Rabbi Akiva, with which Rabbi Judah disagrees, and he states that in order not to cause the offender to suffer a delay of justice he is to be executed immediately.
DETENTION OF THE SUSPECT ONLY WHEN THERE IS EVIDENCE; HUMAN DIGNITY
In the beginning of the fourth century, the amoraim of Ereẓ Israel ruled that the judge may not place a suspect in detention unless there was solid evidence that he had committed the offense. Rabbi Yose, in the Jerusalem Talmud (San. 7, 8), rejects the notion that it is permissible to detain a person in the street only because of the suspicion that he has committed murder, insofar as such an act constitutes an affront to his dignity: "Can it be that we will seize someone in the marketplace and humiliate him?" On the basis of the Mishna in Tractate Sanhedrin (7:5) Rabbi Yose rules that a person suspect of having committed a capital crime is detained even prior to being judged, but only in cases in which there are witnesses who testify that the suspect committed the murder in which case it is permissible to arrest and detain him.
KEEPING A PERSON IN JAIL UNTIL THE RESULTS OF THE OFFENSE ARE CLARIFIED
In addition to the detention of a person suspected of having committed murder, talmudic literature provides that a person may be detained even prior to a determination of his liability for the death penalty, when it is absolutely certain that he committed the offense, and as a result of which it may subsequently transpire that he is liable for capital punishment. Regarding a person who strikes and injures another, the Torah states that, once the victim gets up from his sickbed and it is clear that he will not die from the assault, the perpetrator is only liable for the various heads of damages (see
): "And if men strive together, and one smite another with a stone, or with his fist, and he die not, but keeps his bed: if he rise again, and walk abroad upon his staff, then shall he that struck him be acquitted: only he shall pay for the loss of his time, and shall cause him to be thoroughly healed" (Ex. 21:18–19). The Mekhilta (Mekhilta of Rabbi Ishmael, Horowitz edition, Mishpatim, Parashah 6) rejects the possibility that the attacker "will provide guarantors and go walking in the market" until the victim recovers and it provides that "he is detained until the victim recovers."
The Babylonian Talmud cites a similar interpretation of this verse in the name of the Amora, Rabba, according to whom it is not possible that the Torah is teaching us that if the victim recovers, the attacker will not be executed, because this is self-evident. Consequently, the purpose of the verse in the Torah must be to teach us that the attacker is held in jail until the fate of the victim is clear; if he died – the attacker is executed and if he recovered – the attacker will only pay damages (TB, Ket. 33, 2; San. 78, 2). According to Rashi's explanation (San., ibid.), the purpose of the detention is to prevent the attacker from fleeing.
In the Post-Talmudic Literature
HOLDING A PERSON IN DETENTION – MERELY A PROCEDURAL TOOL OR PART OF THE PUNISHMENT
Regarding the detention of a suspect in a criminal offense, we have found a dispute from the period of the geonim. Their dispute dealt with the question of whether it was permissible to detain a person on the Sabbath or a holy day, and from their words we learn of a different outlook regarding the essence of detention. Rav Paltoi Gaon (Pumbedita, ninth century; Halakhic Rulings [Miller], 135) answered that he must be put in detention but he should not be flogged because flogging constitutes a desecration of the Sabbath (see
). In his opinion, the detention is for the sole purpose of preventing him from fleeing, and it does not contain any punitive element. About 150 years later,
held in an opposing opinion, that "it is not permissible to put a person in jail on a holy day, and all the more so this is impermissible on the Sabbath …" (Shibbolei ha-Leket, 60); according to his view, the detention itself is part of the sentence and of the punishment, and therefore it is impermissible on the Sabbath. It should be noted that the halakhic authorities continued to consider this issue, which was also dealt with by Joseph Caro (Beit Yosef, OḤ, end of sec. 263), the Rama (Shulkhan Arukh, OḤ, 339, 4) and Jacob Reischer (Responsa Shevut Yaakov 1:14 Germany, the 18th century).
THE AMOUNT OF EVIDENCE NECESSARY IN ORDER TO KEEP A SUSPECT IN DETENTION
The discussion in the Jerusalem Talmud, supra, regarding the detention of a suspect from the moment that there is evidence against him, has been interpreted in various ways: R. Nissim Gerondi (Ḥidushei Haran, San. 56, 1) interprets that the mere existence of witnesses is insufficient in order to place the suspect in detention; rather they must actually appear and testify before the court adjudicating the matter, and only then will it be possible to place the suspect in detention. In an opposing opinion, Rabbi Moshe
(Penei Moshe, Jerusalem Talmud, ibid.) interprets the words of the Jerusalem Talmud as providing that it is sufficient that the existence of witnesses has been established.
OVERALL SURVEY OF THE LAWS OF DETENTION AND RELEASE ON BOND – THE RESPONSUM OF THE RIBASH
R. Isaac bar Sheshet *Perfet
(Responsa of the Ribash, sec. 236) received an inquiry from the heads of the community in the city of Tiroal in the Aragon region of Spain regarding the law applicable to a Jew who was suspected of being an informer and who was prosecuted before the rabbinical court in Tiroal. In the question posed to him various problems are raised, both substantive and procedural, regarding the crime of informing, including the issue of release of the suspect from jail upon the posting of bail. The Ribash replies in a clear and leading responsum on this subject, and sets forth the rules of the detention:
a. The detention is only in the case of a suspect in a criminal offense for which the punishment is "a sentence pertaining to the body of the guilty party," i.e., capital punishment or imprisonment, and not when the expectation is that he "will only be obligated to pay money."
b. The rabbinical court will order the detention of a suspect only if it was convinced that "the prosecutor's claims are substantiated" – in other words, that the evidence is sufficient to support a reasonable suspicion against him.
c. The legitimate grounds for detention are (1) to ensure that the suspect will stand trial; (2) to ensure that the suspect, if convicted, will serve his sentence; (3) it is unacceptable for the suspect to be "strolling about the marketplace" while the court is adjudicating his case. This rationale could be interpreted from the point of view of "public opinion," insofar as the public is likely to be disturbed by the contradiction inherent in the fact that, while a trial for a serious crime is underway, the suspect is free to go where he pleases. However, it seems that it should be interpreted in accordance with the accepted grounds for detention that are in use in the contemporary judicial system, according to which the suspect's "walking in the marketplace" may obfuscate evidentiary material, intimidate witnesses, endanger the public inasmuch as he may commit additional crimes, etc.
d. Regarding release on bail – a suspect who is held in detention cannot be released on the basis of bail posted by others, for the reason that if he flees and does not stand trial, on the one hand the obligation to try criminals will not be fulfilled, and, on the other hand, there is no reason for those who posted the bail to pay for a crime perpetrated by another.
From the words of the Ribash, therefore, it may be stated that a suspect may be placed in detention only if the crime he is suspected of having committed would render him subject to capital punishment or imprisonment, the court is satisfied that the prosecutor has solid grounds for charging him and there is concern that if he is not placed in detention the safety of the public will be jeopardized or that there will be an obstruction of justice.
DETENTION OF A PERSON UNTIL THE CONSEQUENCES OF HIS ACTION ARE CLARIFIED
Regarding one who strikes another, when it is still not known whether the victim will die or not, the Rambam held (Hilkhot Roẓe'aḥ, 4, 3) according to the words of the Babylonian Talmud cited above, that the court must evaluate the injury; if in its opinion the victim will die from it, then "the perpetrator is imprisoned immediately and they wait for this," to see if he will indeed die, in which case the
perpetrator will be executed, and if he recovers, the perpetrator will only be liable to pay monetary damages.
In the State of Israel
In the State of Israel, the law regarding the problem of detentions has been the subject of controversy, and has even seen vicissitudes, and the provisions of Jewish law have had a decisive role in its formation. We will expand on this issue somewhat, insofar as we can learn from it the appropriate manner in which the Israeli legal system should absorb values from its roots planted in the heritage of Israel and in Jewish law, in particular regarding significant issues like detention, that have bearing on human dignity and freedom.
In the past, before governing legislation was adopted regarding this issue, there was an opinion that the court could arrest a suspect in a serious crime even if there was no apprehension regarding public safety or obstruction of justice. The main justification for this procedure was to ensure the public's trust in the effectiveness of the criminal justice system.
A thorough examination of the approach of Jewish law to the laws of detention is found in the decision of the Supreme Court in the Abukasis case (BSH 71/78, State of Israel v. Rachel Abukasis, 32(2) PD 240). In the wake of the appeal of the extension of the arrest order, the Court (Justice Menachem Elon) was asked to make a determination regarding the principles behind the laws of detention, and the Court discussed the position of Jewish law regarding this problem at length. The Court presented the principles that were set forth by the Ribash and adopted them, in order to rule, by way of judicial legislation, relying on "the democratic principles of our legal system and the principles of our historical and national law – the Jewish law" (BSHP 2169/92 Suissa v. The State of Israel, 46(3) PD 338, p. 342), that the seriousness of the crime is not sufficient in itself in order to hold a person in detention – except in cases of murder, etc., that were set forth in the legislation.
In 1988, the Knesset passed an amendment to the Rules of Criminal Procedure, which explicitly provided that the seriousness of the crime, in and of itself, would not serve as grounds for detention of a defendant prior to his trial, unless there was proof of a reasonable basis to fear that the public security would be endangered or that there would be an obstruction of justice, or, if as a result of the seriousness of certain crimes enumerated in the law, there was a presumption of such a danger.
In a later decision of the Supreme Court (the Suissa decision, supra), the Court (Justice Menachem Elon) emphasized that, in the wake of the legislation in the State of Israel of the Basic Law: Human Dignity and Freedom, whose stated goal is to solidify the values of the State of Israel as a Jewish and democratic state, "the justification for abrogating this basic right (of individual freedom) … is that if he goes free he will endanger the safety of the public or of an individual or will obstruct justice, and these alone. Our feelings of revulsion due to the seriousness of the crime or our concern regarding the effectiveness of the criminal system cannot justify abrogating a person's freedom and detaining him behind bars; the legislature designated alternatives to achieve these purposes, such as house arrest, and additional means" (ibid., p. 347).
At present, the law in the State of Israel is set forth in the Rules of Criminal Procedure (Enforcement Powers – Arrests), 1996. Pursuant to this law, a judge may order the detention of a suspect before the filing of an indictment only when he is convinced that there is a reasonable suspicion that the person committed a crime whose punishment is more than three months' imprisonment, and in addition there is a reasonable basis to believe that if the suspect is not detained the result will be endangerment of the safety of an individual or of society at large or of State security or obstruction of justice or, if there are special reasons that necessitate detention, in order to carry out an investigation (sec. 13). Detention such as this, prior to the filing of an indictment, is limited in duration.
After the filing of an indictment, the Court is authorized to order the detention of a suspect until the completion of legal proceedings, when, as set forth above, there is reason to believe that otherwise an obstruction of justice will result or that the suspect presents a danger, and in addition to this, also in the case of the most serious crimes, involving serious violence, threat to public security or domestic violence (sec. 21).
A policeman is authorized to arrest a person even without a court order in circumstances in which he has a reasonable basis to believe that the person represents a threat to the security of the public or of a person, or that the failure to order his detention will result in an obstruction of justice (sec. 23). In all cases of arrest and detention by a policeman, a police officer must approve the arrest with a short time, and a judge must confirm the arrest within 24 hours.
The similarities between these detention provisions and the limits on holding a person in detention that the Ribash set out in his responsum, supra can be clearly seen.
As distinguished from the holding of the Ribash, who ruled that when there are grounds for detention the suspect may not be released on bail, the provisions of Israeli law set forth that, as long as it is possible to substitute release on bail or other restricting terms for the detention, it is obligatory to do so.